Scandal! Early Supreme Court News Coverage and the Justice-Journalist Divide

Abstract

In January of 1900, United States Supreme Court Associate Justice Henry Brown (author of Plessy v. Ferguson) had apparently just about had it with the press. He gave what was called “[t]he principal address” before members of the New York State Bar Association in Albany and focused not principally on law, but on what he called journalism’s sensationalistic methods. “Ugly stories are told,” he told the gathered attorneys, “of spies put upon houses to unearth domestic scandals or upon the steps of public men to ferret out political secrets,” including early reports of court decisions. The greatest of the cruelties done by journalists, in Justice Brown’s estimation, were their “assaults upon private character.” The worst of the publications, he complained, were those newspapers that published Sunday editions.

The spying and the invasions of privacy of which Justice Brown complained presumably included incidents involving members of the Supreme Court and others who were well-placed politically. “No man,” Justice Brown complained during his talk, “occupies a political position . . . who cannot be driven from it by a combined attack of two or three influential journals.” Brown’s media-focused speech must have been at least somewhat personal. Not only did the literally and figuratively colorful Sunday editions of newspapers annoy him (“[i]f there be another worse than these, the mind of man hath not hitherto conceived them”), but the papers’ use of illustrations was a particular irritation. “The next step in their downward career,” he complained, included the use of “[p]ictures of current events, of battles, of murders and sudden deaths, sometimes copied from photographs, oftener drawn from imagination.” Much of his talk before New York’s gathered attorneys seemed to echo language and arguments from The Right to Privacy, the influential Harvard Law Review article written by Samuel Warren and Louis Brandeis that similarly condemned newspaper sensationalism and had been published a decade before.

But he also seemed directly inspired by the push-the-envelope Pulitzer newspapers of the day, known for their sensationalism; their use of color and other illustrations; and, notably, their Sunday supplements. Pulitzer used the Sunday editions to experiment with “new features and approaches,” including an insert that smelled of perfume. Pulitzer newspapers were also some of the very first to focus on scandal and celebrity.

Justice Brown’s anti-media speech received coverage in multiple newspapers, including the Washington Post, the New York Times, and the Baltimore Sun. The Sun perhaps put it best when it reported simply that the Justice had “severely denounced what he termed sensational journalism.” Biographers would later call Brown a “reflexive social elitist,” and his opinions regarding the journalism of the day seem to be in line with that description. The common person may have enjoyed the Sunday supplement’s sensationalism; Justice Brown did not.

The Justice-journalist divide during this period was not limited to Justice Brown’s harangue outside the courtroom. It was a time when he and the other Justices had very precise rules for those who covered the Supreme Court’s proceedings from inside the Court. First, it was suggested that no one observing the Supreme Court, including journalists themselves, could take notes on what was being said. Second, and foreshadowing today’s refusal to allow cameras in the courtroom, it was also suggested that no one was allowed to sketch the Justices as they sat during oral argument. The punishment for those who disobeyed must have been severe. As a Chicago paper explained, “Woe be to you if you violate any of the rules.” The Justices apparently so valued their privacy during the turn of the twentieth century that they even attempted to veto the now larger courtroom because it would accommodate a larger audience. Given that sort of history, it is not surprising that Justice Brown would find the more Court- and Justice-interested journalism of the day utterly unsatisfactory and invasive.

This Essay explores some of that early press coverage of the Supreme Court, particularly of its Justices, and it attempts to explain what could have so provoked Justice Brown. The story is personal to Justice Brown, who was of some interest to journalists of the time, but it is also much broader. A Supreme Court press corps that had once been at least somewhat compliant and respectful of the Court became more critical of both the Justices and their decisions, and more interested in them as personalities. Ultimately, this Essay argues that such a history — one that began with at least partial quiet deference and turned distinctly toward sensationalism — laid the groundwork for Justice Brown’s anti-journalism speech and the distrust shown to media by today’s Justices.

Keywords: Press, Media, New Reporting, Supreme Court, Henry Brown, Journalism